Walsh Transp. Co. v. Iroquois Transit Corp.

16 F.2d 475 | S.D.N.Y. | 1926

THACHER, District Judge.

Tbe libelant, as owner or charterer of certain barges, bas filed its libel against tbe respondent in a cause of abuse of legal process, alleging in substance that tbe respondent, as libelant in a suit in admiralty against tbe Canadian Cooperative Wheat Producers, Limited, caused process of attachment to be issued against certain wheat belonging to tbe Canadian Cooperative Wheat Producers, Limited, which was in course of transportation on tbe barges owned by tbe libelant here. By reason of tbe issue of this process it is claimed that tbe libelant’s barges were detained in the custody of this court for a period of five days, and damages are sought for this detention.

Tbe court’s jurisdiction is questioned, but tbe consummation of the wrong, if wrong was done, was upon navigable waters, where tbe process was served, and there can be no doubt of tlie court’s jurisdiction. It is entirely clear that allegations showing malice, or negligence so gross as to amount to the same thing, are necessary to sustain the libel. Artinano v. W. R. Grace & Co. (D. C.) 286 F. 702, and eases there cited. The first cause of action is plainly lacking in this respect. Its allegations amount to nothing more than a denial of the allegations in the. original libel under which the process was issued. There is not even a suggestion that these allegations were known to be false when made. The second cause of action assumes that the process was lawfully issued; the only complaint being that too much grain was attached. The allegations are not, in my judgment, sufficient to support a charge of malice or gross negligence. The third cause of action is also insufficient. The only basis of malice is the allegation that, when the respondent filed its original libel on which process was issued, it knew or should have known that it had no just cause of action “against this libelant.” The libel did not attempt to assert any cause of action against the Walsh Transportation Company, to which reference is thus made.

The facts alleged in the libel not being sufficient to constitute any cause of action, the exceptions are sustained.